Molyneaux Lawhttps://www.molylaw.com
Hamilton Employment Lawyers, Hamilton Human Rights Lawyers and Hamilton Labour LawyersTue, 19 May 2020 14:35:20 +0000en-CA
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1 https://wordpress.org/?v=5.4.1Is your workplace re-opening on May 19th? COVID-19 restrictions remain in placehttps://www.molylaw.com/2020/05/re-opening-covid-19-retail/
Mon, 18 May 2020 17:20:08 +0000https://www.molylaw.com/?p=2018Many workplaces are preparing to re-open or expand their operations again after 2 months of COVID-19 closures. Others have already re-opened. Workers and employers alike may be wondering: Is this business as usual? Is my workplace essential now? How do we work safely during COVID-19?

]]>Many workplaces are now re-opening or expanding their operations again after 2 months of COVID-19 closures. Others have already re-opened. Workers and employers alike may be wondering: Is this business as usual? Is my workplace essential now? How do we work safely during COVID-19?

NOTE:This post is general information, not legal advice. If you are unsure if it is safe or legal to return to work you should contact an employment lawyer or your union as soon as possible. Work refusal is complicated, and the legal issues raised by COVID19 in the workplace are new, unusual and change quickly. Consult current resources or a lawyer wherever possible.

Employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

This post was published on 18 May 2020.

What workplaces can re-open?

Many businesses closed in response to emergency orders starting March 18. Some “essential workplaces” have been allowed to stay open throughout the pandemic (such as grocery stores, pharmacies, law firms, etc.). You can find a complete list of essential workplaces here.

This Saturday (May 16), additional businesses were allowed to re-open. These included:

Golf courses, including clubhouse washrooms and take-out.

Marinas, boat clubs and public boat launches for recreational use.

Private parks and campgrounds. They may prepare for the season and allow access for trailers and recreational vehicles whose owners have a full season contract.

Businesses that board animals, such as horse stables. They may allow boarders to visit, care for or ride their animal.

On Tuesday (May 19), more businesses will be allowed to open. This includes:

Stores that have their own street-front entrances and are not part of a shopping mall. However, they must have physical distancing or social distancing measures in place. Fitting rooms must have doors, not curtains.

Seasonal businesses and recreational activities for individual or single competitors. This includes indoor and outdoor solo sports that can be played while maintaining physical distancing and without spectators. The government provided examples like tennis, track and field, horse racing, rod and gun clubs, indoor driving ranges, fencing, rock climbing, gymnastics, car or motorcycle racing, and outdoor water sports on lakes or rivers (not in pools). High-contact sports are not permitted (things like squash, boxing, wrestling, and martial arts).

Indoor and outdoor household services, such as housekeepers, cooks, cleaning and maintenance.

Construction work previously shutdown as non-essential.

Some health and medical services. This includes urgent and non-urgent in-person counselling, psychotherapy, and support services as well as scheduled surgeries. Medical and mental health professionals should consult profession-specific guidance.

Libraries, for pick-up or delivery.

Car dealerships (previously, car dealerships were only open by appointment).

Motor vehicle emissions testing.

General maintenance and repair services, including repairs that aren’t “strictly necessary” (which was the old rule).

Specific scientific research and development work (if you’re a scientist, we encourage you to check out the list- but many scientists were already working in essential workplaces under the old rules).

Does this mean that my workplace has to re-open now?

No. Unless your workplace is a government office, your employer has a choice about re-opening. Or, if you are an employer, you have a choice. Re-opening isn’t mandatory. In fact, if working from home is working for you, the government encourages you to continue. And, the Ministry of Labour and Ministry of Health still have the power to shut down businesses or stop specific work if workers or the public are unsafe.

However, refusing to come back to work when your employer re-opens has risks. Generally, employees have to do what their bosses tell them. There are some exceptions when it is unsafe to do so, or impossible because of your childcare or disability-related needs. But, there are specific rules to follow if you can’t return to work for those reasons. And it can be complicated! Our posts on Coronavirus work refusals and COVID-19 leaves in Ontario provide some basic information, but employees in this situation should get legal advice or talk to their union.

What is the guidance for re-opening?

The government provides industry-specific Resources to Prevent COVID-19 in the Workplace . These resources give advice about how to follow social distancing rules at work when re-opening. They also explain what type of personal protective equipment (aka PPE) might be appropriate for your workplace. This can include things like masks.

While the Guidance frames training workers on COVID-19 precautions as an “option”, training workers or workplace health and safety risks is mandatory under the Ontario Occupational Health and Safety Act. So too is providing the tools that people need to work safely. So, while things like hand sanitizer or hand washing stations or managing the number of customers in the store are also called “options”, they may not really be optional in some cases. If you’re unsure if occupational health and safety requirements are being met in your workplace, call a lawyer immediately to get advice.

What are the social distancing and self-isolation rules now that we’re re-opening?

This is a tricky question. For one thing, the rules change often and it’s hard for even experienced lawyers to keep up. For another, guidance differs a little depending on where you look. You might see one thing in Ontario’s emergency legislation, another coming from Public Health Ontario or your local public health authority, still another from Health Canada.

Here are a few key emergency orders that remain in place under Ontario law today (18 May 2020):

Businesses need to follow public health advice on social distancing, cleaning and disinfecting.

No public events, social or religious gathers of more than 5 people. This includes events in your home. It does not include single households that have more than 5 people in them. An exception permits up to 10 people to attend a funeral.

If you’re re-opening a business, it’s important that you get legal advice specific to your work. Same if you are considering refusing to return to work or refusing to do certain jobs at your workplace because of health concerns. As we mention at the top of this post, a lawyer’s blog post is not a substitute for legal advice or scientific or medical information.

How long is the COVID-19 emergency going to last? Does re-opening mean it’s over?

We don’t know. Recently, the declaration of emergency in Ontario was extended until June 2, 2020. However, it is very possible that the emergency will be extended again at that time. Some regulations are set to expire tomorrow (19 May 2020), but we assume that they will be extended – the Ontario Legislature is meeting tomorrow to vote on this and other issues.

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>CERB Info Sheethttps://www.molylaw.com/2020/05/cerb-info-sheet-hamilton/
Mon, 18 May 2020 14:45:59 +0000https://www.molylaw.com/?p=2010The CERB or Canada Emergency Response Benefit is a special benefit available to workers who have lost their jobs during the COVID-19 pandemic. Even self-employed people or workers who have seen their income drop to $1,000 or less per month may be eligible for the CERB. Unsurprisingly, this new benefit has changed a bit as the government responded to criticism of the program in its first month.

]]>The CERB or Canada Emergency Response Benefit is a special benefit available to workers who have lost their jobs during the COVID-19 pandemic. Even self-employed people or workers who have seen their income drop to $1,000 or less per month may be eligible for the CERB. Unsurprisingly, this new benefit has changed a bit as the government responded to criticism of the program in its first month. Find answers to your most common questions about the CERB below.

What is the Canada Emergency Response Benefit?

This benefit is for those whose employment has been directly affected by COVID-19. The CERB will provide temporary income support. The Benefit is available for the period from March 15, 2020 to October 3, 2020.

When can I apply?

If you were born in the month of

January, February or March apply on Mondays.

April, May, or June apply on Tuesdays.

July, August, or September apply on Wednesdays.

October, November, or December apply on Thursdays.

Any month, apply on Fridays, Saturdays and Sundays.

Where can I apply?

CRA and Service Canada are working together to ensure access to funds the fastest way possible. You can apply online or via telephone;

Who is eligible for this Benefit?

You have stopped working or seen your income reduced to $1,000 or less because of COVID-19 and did not VOLUNTARILY quit.

You do not receive Employment Insurance or sickness benefits.

Must have reported an income of $5,000.00 in 2019 or in the 12 months prior to the date of your application (this includes pregnancy and parental leave benefits).

Those who are or will be without employment or self-employment income for at least 14 consecutive days in the initial 4-week period.

The initial 4-week period began from March 15 to April 11th’

You have to reapply every CERB period which are as follows;

April 12, 2020 to May 9, 2020

May 10, 2020 to June 6, 2020

June 7, 2020 to July 4, 2020

July 5, 2020 to August 1, 2020

August 2, 2020 to August 29, 2020

August 30, 2020 to September 26, 2020

You can receive benefits for up to 16 weeks if eligible.

What documents do I need to provide?

You will need to provide your personal contact information, your Social Insurance Number and confirm that you meet the eligibility requirements.

You may be asked to provide additional documentation to verify your eligibility at a future date.

How and when will you receive payment?

After you apply, you should get your payment in 3 business days if you signed up for direct deposit. If you haven’t, you should get it in about 10 business days.

Will I have to pay back the CERB?

The CERB is considered taxable income. If you were receive this benefit, you may have to pay tax on it when you do your 2020 taxes.

If you were not eligible and applied you will have to return the entire amount issued to you. While no interest will be applied for mistaken receipt of the CERB, people who defraud the system deliberately may have penalties.

Should I apply for Employment Insurance (EI) or CERB?

If you have lost your employment income or self-employment income directly because of COVID-19 you should apply for CERB even if you qualify for EI.

The government is now directing even people who have lost their job for reasons unrelated to COVID-19 to apply for the CERB.

What if you have already applied for EI, but have not been approved?

If you become eligible for EI benefits or sickness benefits on March 15,2020 or later, your claim will automatically be transferred to the CERB.

What if you are already receiving EI or sickness benefits?

If you are already receiving EI or sickness benefits, you will continue to receive those benefits until the end of your benefit period. You cannot receive EI and CERB for the same period.

What if you are already receiving special benefits?

If you have applied for maternity, parental, caregiving, fishing and work-sharing benefits, you will continue to receive those benefits if you are otherwise eligible.

Do you qualify for CERB if you lost your income due to non-covid related reasons?

Yes. Initially, the CERB was only available for people experiencing COVID-19 related income loss. The government is now directing other people experiencing income loss during this time to the CERB application.

However, neither CERB nor EI is available to people who have “voluntarily quit” their jobs. While the CERB is a new benefit, EI has interpreted this to meant that people who have been “constructively dismissed” (aka forced to quit) are eligible. We predict that CERB will take the same approach.

Note: This info sheet provides general information but isn’t legal advice. Information about COVID-19 related benefits including the CERB is new and rapidly changing We encourage you to contact us or another labour and employment lawyer as soon as possible if any COVID-19-related issues come up in your employment. There’s no substitute for advice tailored to your specific circumstances and the laws about COVID-19 in the workplace are changing rapidly, so you may need help with decision-making on these important issues. You can contact us at 289.389.4499 or info@molylaw.com .

RESOURCES

Apply for the CERB or get more information about your eligibility here: Cerb Application

You might be interested in some of our other blog posts on your rights during the COVID-19 pandemic:

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>Privacy in the Time of COVID: Employee Privacy Rights when Working from Homehttps://www.molylaw.com/2020/05/privacy-in-the-time-of-covid-employee-privacy-rights-when-working-from-home/
Fri, 08 May 2020 20:18:26 +0000https://www.molylaw.com/?p=1999Employee privacy during the COVID crisis is a major concern in workplaces across Canada. For the non-essential business, new rules have required the shut-down of the physical work site. These rules have resulted in temporary shutdowns and layoffs for some organizations. In contrast, those less dependent on their physical operations have shifted toward telecommuting and […]

]]>Employee privacy during the COVID crisis is a major concern in workplaces across Canada. For the non-essential business, new rules have required the shut-down of the physical work site. These rules have resulted in temporary shutdowns and layoffs for some organizations. In contrast, those less dependent on their physical operations have shifted toward telecommuting and working from home. This has in turn raised questions of privacy and supervision.

More than ever, workplaces and employees are engaging with one another in a virtual world. Zoom or Skype meetings are becoming the norm and employees are bringing more and more employer equipment into the home. In light of these changes, real questions are emerging about an employee’s digital privacy rights and an employer’s right to supervise. These questions go beyond whether wearing pants is a requirement for working and include more legitimate questions such as:

My employer says that because everyone is now required to work from home, they can regularly check my browsing history during work hours? Is this allowed?

Our workforce has been given laptops to assist them with working from home. What rights do we have to review activities on this equipment?

Because we’re now working from home without supervision, my employer has installed a keyboard tracer on our laptops to track what we type and search. This was never required. Is it allowed now?

The Short Answer

Although somewhat modified for the unionized employee, employee privacy rights are generally based on a complete review of the specific workplace circumstances. This review includes looking at the protected information (e.g. e-mails or browsing history), any workplace policies on the topic, the general understanding of employees related to the employer’s practices, and anything else that might be considered relevant. The more the Employer has cracked down on digital privacy rights over time, the lower the privacy expectation. In contrast, if an employer has been more lenient and flexible, the greater the right to privacy.

When thinking about privacy rights in the COVID world, there is no reason to believe that the assessment will change. If an Employer has seldomly reviewed e-mails and browsing history, then they are unlikely to have a full blown right to do so now simply because of COVID. At the same time, as restrictions on business operations increase during the COVID crisis, arbitrators and courts may begin to grant employers more flexibility in their practices. Ultimately, and if COVID persists, privacy rights today are unlikely to be the same as privacy rights 6 months from now, but how those rights will change is still to be decided.

Developments in Privacy Law

As discussed in an earlier blog post, the concept of employee privacy in the Canadian workplace is a muddied one. A patchwork of provincial and federal laws applies to some types of employee personal and personal health information. At the same time, a significant gap exists in the privacy interests of employees concerning their general use of employer equipment, e-mails, or other forms of digital communication, storage, and content.

Referencing our earlier blog, Canadian Courts now recognize that you can be sued for “intrusion upon seclusion” or for invading someone’s privacy. In Jones v Tsige (2012) ONCA 32, the key case on this issue, it was suggested that such a claim could also apply to “non-physical” forms of investigation such as “private and personal mail”.

Employee Privacy Rights

Despite the decision in Jones v Tsige, it is important to understand that this development did not answer whether an employer can review the private e-mails, browser history, or communications of their employees. What then are an employer’s rights to monitor private communications and what are the protections available to an employee?

Expectation of Privacy

As already suggested, the concept of employee privacy is not the same across Canada. In addition, privacy is subject to the specific terms and facts that exist in a specific work environment.

In the case of R v Cole (2012) SCC 53, where a teacher with nude photos of a student on his work computer had his work computer accessed during a routine scan by his employer, the Supreme Court of Canada suggested a “diminished expectation” of privacy over the work device. At the same time, the Court noted that the privacy expectation would depend on the “totality of the circumstances” including: 1) an examination of the subject matter; 2) a determination of the direct interest in the subject matter; 3) whether there was a subjective expectation of privacy in the subject matter; and 4) whether the subjective expectation of privacy was reasonable.

On the question of reasonable expectations, the Court said that the issue would be determined by a holistic review of various factors such as the workplace policies, practices, and the customs addressing private information.

Privacy Expectations in the Workplace

What then are the privacy rights of an employee or the extent of an employer’s supervisory rights? This question has been answered differently depending on the specific facts or the “totality of the circumstances” described in R v Cole.

Broadly, in the unionized environment, whether intrusive searches can be conducted depends first on the reasonableness of the search and the available alternatives; if there is a less intrusive way of investigating, the less intrusive path should be taken. however, even establishing that a search is reasonable does not automatically entitle an employer to access. Decision makers must also consider the privacy expectation that attaches to the information in a manner consistent with R v Cole.

In New Brunswick v CUPE Local 2745 (2015), a unionized employee under investigation for an unrelated issue was terminated for e-mailing sexually explicit material with her husband. In that case, while being a reasonable search conducted for a legitimate underlying concern, it was determined that the employer’s broad policies did not entitle it to review e-mails exchanged between spouses which otherwise had an expectation of privacy.

In the non-unionized environment, employees are likely more vulnerable to intrusions of privacy. While the unionized employee can take comfort in knowing a search must be reasonable to begin with, the non-unionized employee will have their rights determined by the “Totality of the circumstances” as described in R v Cole. Although likely to be less significant than the protections afforded to unionized employees, employees still retain an expectation of privacy, albeit diminished, based on circumstances relevant to their specific employment. Again, the circumstances include the relevant policies, practices, and the customs in play at the workplace.

Employee Privacy During COVID

COVID privacy rights will still be determined using the principles that have been broadly described here. Yes, there has been a fundamental shift in the way that work is being conducted; working from home and telecommuting have become the norm for broad sections of the economy and perhaps more than ever, employees are working without supervision. But these changes do not affect the underlying road maps that have been laid out by the Courts and labour arbitrators.

Employers will have rights to investigate certain information and communication, but those rights will be limited by the privacy expectations of its workforce which will in turn depend on the specific policies and practices in play at the workplace. At the same time, the societal changes that are taking place are likely to become key factors in determining the strength of the privacy expectation in the COVID workplace, especially if these changes persist over a longer period of time.

Going forward through the COVID and post-COVID world, employees should acquaint themselves with the policies and practices of employers relating to the monitoring of private information circulated on their systems, networks and equipment. Employers should also assume that any access decision will likely be opposed by some expectation of privacy and should work to make these expectations clear for employees. At the same time, a claim for “intrusion upon seclusion” may make itself available depending on the nature of the privacy intrusion. In determining the rights of either party, the key then is to establish the proper balance.

If you have any questions about employee privacy rights or the policies in your workplace, please feel free to contact the lawyers at Molyneaux Law to assist you in the navigation of these issues.

DISCLAIMER: This blog is for educational and informational purposes only may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>We’re Hiring a Legal Assistanthttps://www.molylaw.com/2020/05/were-hiring-a-legal-assistant/
Mon, 04 May 2020 15:47:53 +0000https://www.molylaw.com/?p=1994Molyneaux Law seeks a legal assistant to support a small law firm with a growing labour, employment and human rights law practice. This is a 1-year contract to cover a parental leave, starting in June 2020. The ideal candidate: Has excellent communication skills Has experience working in an office setting, preferably as a legal assistant […]

]]>Molyneaux Law seeks a legal assistant to support a small law firm with a growing labour, employment and human rights law practice. This is a 1-year contract to cover a parental leave, starting in June 2020.

The ideal candidate:

Has excellent communication skills

Has experience working in an office setting, preferably as a legal assistant at a law office

Is a ‘people person’

Shows attention to detail

Is comfortable with technology, including electronic file management technology (experience with Clio an asset)

Possibility to incorporate paralegal practice opportunities and corresponding alternative remuneration structure available to qualified applicants, including coverage of professional fees.

Molyneaux Law is committed to diversity and inclusion, and to upholding its non-discrimination obligations under the Ontario Human Rights Code. Please advise at the time of your application if you require any accommodation in the application or interview process.

Accessibility Info: Our building has automatic main doors, accessible by ramp and our second-floor offices can be accessed by elevator. Accessible, all-gender washrooms on main floor.

COVID-19 Info: We expect that interviews will be conducted by video conference. If social distancing measures continue to be directed in June 2020, the successful candidate will be expected to work from home on a part-time basis until such time as social distancing directives are lifted and will be provided with the necessary equipment to do so. It is expected, but not guaranteed, that the successful candidate’s hours of work will increase upon our firm’s return to more regular working arrangements.

How to apply: Interested applicants are invited to send a cover letter and resume to Roberto Henriquez at info [at] molylaw.com by 22 May 2020. Only candidates selected for an interview will be contacted.

]]>I’m working from home during COVID-19, what are my rights? Hours of Workhttps://www.molylaw.com/2020/04/working-from-home-covid-19-hours/
Wed, 22 Apr 2020 15:59:17 +0000https://www.molylaw.com/?p=1979While a lot of lifestyle articles published in the last month argue the merits of maintaining work-life balance while working from home or sticking to a routine during COVID-19, there’s a legal reason to do this, too. Ontario employers have an obligation to record employees' hours of work and pay them accordingly. Working from home doesn't change this duty, but it may change how it's implemented.

]]>The COVID-19 pandemic means that more people are working from home. For many people, this happened suddenly due to health and safety concerns or emergency orders to close all non-essential businesses. As we settle into this new routine (at least for a while), you may be wondering: does working from home affect my rights or the rights of my employees?

We’ll be doing a short series of blog posts on workers’ rights while working from home during COVID-19. Our first topic? Getting paid for the hours you work! After all, the key component of an employer-employee relationship is that the worker gets paid for their labour.

HOURS OF WORK DURING COVID-19

While a lot of lifestyle articles published in the last month argue the merits of maintaining work-life balance while working from home or sticking to a routine, there’s a legal reason to do this, too.

Employers have an obligation to track an employee’s hours of work. The image of punching in on a timecard or logging in at a cash register may come to mind, but lots of us don’t work that way. Instead, we show up for our regular shift and leave when it’s done. The employer knows your hours, because they’re at the office or store with you.

Now that workers are at home, employer should discuss with them how to record their hours of work. Employees should consider keeping their own records even if their boss doesn’t ask them to, so they can be sure they’re being paid properly.

Why is it important to track your hours of work when working from home?

For most non-managerial employees, the law sets limits on how many hours a day or week an employee can work. It also requires that workers be given breaks during their shifts and sufficient time off between shifts. Employers who aren’t tracking their employees’ hours of work risk failing to comply with these break and rest requirements or paying overtime pay when it’s due. On top of being a violation of the Employment Standards Act that could result in orders to pay or fines, overwork isn’t good for workplace morale or employees’ physical and mental health.

Employees who are working extra hours may be accruing unpaid wages or unpaid overtime, which they could later pursue through a civil lawsuit or a complaint to the Ministry of Labour.

Tips for Employers new to working from home

Clearly explain to workers in writing that they must continue to take breaks and to stop work at the scheduled end of their shift.

Implement written policies about hours of work and share these with employees.

Avoid emailing, calling, or texting employees outside of their scheduled hours of work (if inspiration hits you late at night, consider scheduling that email for delivery the next day).

Avoid assigning so much work that breaks or regular hours of work are not realistic.

Direct employees to record their hours each day. If you don’t have a system in place for this, consider using a shared outlook or google calendar or a check-in email at the beginning or end of a shift.

Avoid tracking hours or productivity in a manner that is unduly intrusive of employees’ privacy at home. We don’t like this idea, for example. In my not-so-professional opinion, it’s creepy. Remember, your employees may live with roommates or family members who don’t work for you or they may simply wish to keep aspects of their personal life private from you/their coworkers. COVID-19 doesn’t give you a right to digitally barge into their homes or pry unnecessarily.

Maintain regular contact with employees and remind them of your policies on breaks, rest time, recording hours of work, and overtime.

Model appropriate work-life boundaries.

Consider requests for parental status or disability-related accommodation and get legal advice when needed.

Tips for Employees new to working from home

Keep a personal record of your hours. Some options that work for our clients include:

Writing your hours in your daily planner

Keeping a google calendar on your personal account

Sending yourself texts or emails to record your hours

Consider discussing concerns you have about your schedule while working from home with your employer. If you do this, make a note for yourself after about how the conversation went- even if it was positive! Include the date of the conversation and who you spoke with in your notes as well as a summary of what you discussed.

Keep copies of your paystubs, and regularly check them to confirm that they are accurate. If you normally get a hard copy of your paystub delivered at work, consider asking for an emailed version while you work from home or that it be mailed to you.

What about flexibility?

Sure. Flexibility is important right now, but the law continues to mandate that employers track employees’ hours of work and pay them for each hour worked, including premium rates for each overtime hour worked by eligible employees.

Permitting an employee to work different hours or take longer breaks because they are working from home, have childcare obligations, disability-related needs, or are just struggling right now doesn’t meant that those hours should not be tracked and paid. “Flexibility” is a benefit to employees when it is respectful of their rights as workers, not when it’s an excuse for employers to avoid the administrative hassle of appropriate record keeping.

What about “time theft”?

I don’t like that phrase! In general, employees have a duty to do work while they are being paid by an employer. Most employees are honest and hard-working, so this isn’t an issue for them. However, even in non-COVID-19 times when most of us attended at a physical workplace for our scheduled shifts, lots of employees were allowed to have a chat with colleagues or customers, nip out for a coffee or to grab a snack, or read a news article at their desk. Parents might get calls from school or a co-parent about a sick kid or a discipline issue. If that was permitted pre-COVID-19, equivalent minibreaks or urgent calls should be fine now.

At the same time, COVID-19 has placed new pressures on workers. For example, parents working from home now have to balance childcare and their job duties.

It would not have been reasonable in most workplaces for an employee to bring their child to work with them for a month instead of sending them to school. Now it’s likely not reasonable for employers to demand that employees ignore their kids during their work from home shift. Docking pay for the minutes spent troubleshooting a kid’s online learning is not going to be worth the hassle, bad blood and potential complaints of parental status discrimination. But, it may also not be practical for an employee with many competing at-home duties to continue to be as productive as usual or have as many hours to devote to work as they usually do. In some cases, it may be appropriate to temporarily reduce an employee’s hours to reflect the amount of time they can reasonably devote to their job. In other cases, it may be unreasonable or even discriminatory.

If you’re an employer who is thinking of cutting an employee’s hours or pay because of concerns about their productivity during COVID-19, you should consider getting legal advice about the implications for the employee’s rights under their contract, workplace policies, or the Human Rights Code.

If you’re an employee whose employer is suggesting cuts to your hours or pay, or who needs to cut back on their work because of your COVID-19-related childcare or eldercare obligations or disability-related needs, consider getting legal advice to help you navigate these issues.

What are the rules about hours of work?

For most workers in Ontario, the Employment Standards Act sets out their basic rights at work. These apply equally to workers working from home and those attending at a physical workplace.

The Employment Standards Act generally requires that an employer pay at least minimum wage of $14.25. Some exceptional groups of employees who don’t have the right to minimum wage or for whom a lower minimum wage applies. For example, many professionals or students training to become professionals are exempt from the minimum wage. In addition, the student minimum wage for high schoolers is just $13.40.

The same law mandates that most workers get overtime pay after 44 hours of work per week.

It also provides that most workers:

cannot work more than 48 hours per week.

get at least 30-minute break every 5 hours of work.

have at least 11 consecutive hours off per day.

have 8 hours off between shifts.

have 24 consecutive hours off per week or 48 consecutive hours off per two-week period.

Some of these basic rights are subject to exceptions for certain jobs or industries, others can be modified by written agreement or with permission from the government. Employees may have additional rights under their employment contract, workplace policies or their collective agreement if they are unionized. If you’re unsure, contact an employment lawyer or your union if you have one.

But I get paid a salary…

It’s a common misconception that salaried employees don’t have the right to overtime pay or limits on their hours of work. A related misconception is that calling some one a “manager” in their job title exempts them from overtime pay. In Ontario, the real question is whether the employee is truly managerial or if another exception applies. If not, a salaried employee or one with a manager title is no different from an employee paid an hourly wage. The Ministry of Labour’s self-service tool helps guide you through the basics of this issue. If you’re unsure if you’re managerial or just salaried, contact an employment lawyer for advice.

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>On 19 March 2020, the Ontario government passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. This new law provides job protected COVID-19 leaves for Ontario employees directly affected by the coronavirus. It also excuses employees affected by COVID-19 from providing sick notes to access these new leaves. It does not mandate paid sick days for any Ontario workers. Its provisions are retroactive to 25 January 2020.

WHAT WORKERS ARE COVERED BY BILL 186’S COVID-19 LEAVES?

Most provincially regulated Ontario workers are covered by the
new law.

The following types of workers are entitled to a job
protected unpaid leave form work:

CATEGORY 1: Employee cannot work because of a
declared emergency and meets at least one of the following criteria:

Cannot work because of an order under the Emergency
Management and Civil Protection Act

Cannot
work because of an order under the Health Protection and Promotion Act

Cannot work because they need to care or assist
a close family member (including in-laws and step-family)

CATEGORY 2: Employee cannot work for one of the
following reasons:

They are being investigated, supervised or
treated in relation to the designated infections disease (in this case, that’s
COVID-19).

They are acting in accordance with an order of a
Medical Officer of Health or Judge under the Health Protection and Promotion Act
to prevent the spread of communicable disease, and can include an order to
self-isolate.

They are in quarantine, isolation or subject to
some other control measure related to COVID-19. This can include directions
issued to the public by a public health official, a qualified health practitioner,
Telehealth Ontario, the Government of Canada, the Government of Ontario, a municipal
counsel, or Board of Health.

Their employer directed them to stay home
because of a concern that they may expose others to COVID-19 while on the job.

They are providing COVID-19 related care to a
family member, including caring for children due to school or daycare closures.

They are subject to COVID-19 travel restrictions
and cannot reasonably be expected to return to Ontario.

Do I need a doctor’s note to access COVID-19 leaves?

Not necessarily. An employer can require “evidence reasonable
in the circumstances, at a time that is reasonable in the circumstances” to
prove that they’re entitled to the leave. However, they cannot require that the
employee provide a doctor’s note or medical certificate.

How long do the COVID-19 leaves last?

This leave lasts as long as it’s needed or until the
declared emergency ends.

In other words, if you’re on a COVID-19 leave because of
school closures, your leave is likely to last until the end of the declared
emergency or until your childcare needs change, whatever comes sooner. If you’re
on a COVID-19 leave because you’re self-isolating for 14 days after travel, you’re
likely to have to return after your self-isolation if you remain symptom-free.

Are all Ontario employees entitled to COVID-19 leaves?

No. Even if you otherwise meet all of the criteria set out
above, you may not be eligible for a COVID-19 leave. There are always exceptions.
For example, lawyers, doctors and other professionals may not be entitled to
take leaves if it is professional negligence to do so. And, other emergency orders
recently made by Ford give hospitals and long-term care homes the right to call
employees back from leaves if it’s reasonably necessary to do so to fight COVID-19.

Federally regulated employees may also qualify for COVID-19
leaves. Our blog post on this topic can be found here.

Does this mean I can’t be fired or laid-off because of
COVID-19?

Bill 186 makes it illegal to fire employees because
they needed time off related to COVID-19. Nothing in these amendments make legitimate
firings or lay-offs illegal. If you’ve committed serious misconduct, you can
still be fired for cause. Likewise, if your employer is issuing layoffs for
business reasons, these laws don’t necessarily prevent them from doing so.
Employees dealing with terminations or temporary lay-offs during the COVID-19 pandemic
should seek legal advice as soon as possible.

DISCLAIMER: This blog is for educational and
informational purposes only. Results of cases described in these posts may not
be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not
guaranteed, and laws may change from time to time. If you would like legal advice
or have questions about your particular workplace problems, please contact a
lawyer. Click
Here to
contact Hamilton labour, employment and human
rights lawyers Sarah
Molyneaux or Roberto
Henriquez now. Contacting
Molyneaux Law or using this website does not create a lawyer-client
relationship. Your use of this website is entirely at your own risk.

]]>FEDERALLY REGULATED EMPLOYEES AND COVID-19: WHAT HAPPENS TO FLIGHT ATTENDANTS, BANKERS OR CROSS-BORDER TRUCKERS IF THEY GET CORONAVIRUS?https://www.molylaw.com/2020/03/federally-regulated-employees-covid-19-canada/
Thu, 26 Mar 2020 02:08:57 +0000https://www.molylaw.com/?p=1959Federally regulated employees with COVID-19 may be wondering what their employment law rights are. It’s easy for federally regulated workers to get lost in the mix. The vast majority of employees are provincially regulated – and there’s been a lot of press around provincially regulated Ontario employees’ new rights in light of the coronavirus pandemic. […]

]]>Federally regulated employees with COVID-19 may be wondering
what their employment law rights are. It’s easy for federally regulated workers
to get lost in the mix. The vast majority of employees are provincially
regulated – and there’s been a lot of press around provincially regulated
Ontario employees’ new rights in light of the coronavirus pandemic. However, a
small but no less important segment of Ontario workers fall under federal
regulation instead of provincial regulation. This means different laws apply to
their work, including different rights in responding to COVID-19. The laws
affecting federally regulated employees were amended yesterday (24 March 2020).

CAUTION: LAWS ARE CHANGING QUICKLY IN RESPONSE TO COVID-19. THIS BLOG
POST MAY NOT CONTAIN THE MOST CURRENT INFORMATION AND IS NO SUBSTITUTE FOR
LEGAL ADVICE. CONSULT YOUR UNION OR YOUR LAWYER IF YOU HAVE SPECIFIC CONCERNS
ABOUT YOUR RIGHTS AT WORK.

Who are federally regulated employees?

You are likely federally regulated if you work in one of the
following industries:

Banks

Marine shipping, ferry and port services

Air transportation, including airports,
aerodromes and airlines

Railway and road transportation that involves
crossing provincial or international borders

Canals, pipelines, tunnels and bridges (crossing
provincial borders)

Telephone, telegraph and cable systems

Radio and television broadcasting

Grain elevators, feed and seed mills

Uranium mining and processing

Businesses dealing with the protection of
fisheries as a natural resource

Many First Nation activities

Most federal crown corporations

Private businesses necessary to the operation of
a federal act

However, there are exceptions and sometimes it’s not that
obvious what industry you work in. For example, if you work for an air
ambulance provider do you work in the air transportation industry or the health
care industry? If you work in an insurance office owned by a bank, are you in
the insurance industry or the banking industry? If you’re unsure, you should
contact your union or an employment lawyer to get some advice.

What laws cover federally regulated employees who miss
work because of COVID-19?

For most workers in Ontario, the provincial Employment
Standards Act,Occupational Health and Safety Act, Labour Relations Act
and Human Rights Code work togetherto set their minimum rights
at work. Ontario workplaces are also affected by the Declaration of Emergency
and Emergency Orders made by Premier Ford this month. If you’re provincially
regulated, please check out our Coronavirus
FAQ Post.

For federally regulated employees, the federal Canada Labour Code and the Canadian Human Rights Act provide minimum standards for everything from minimum wage and sick leave to the refusal of unsafe work to non-discrimination on the basis of disability or parental status. Bill C-13 amendes the Canada Labour Code in response to the COVID-19 pandemic.

Federally regulated employees get up to 5 days of “personal
leave” each year. This can be used for things like a personal illness, to care
for a family member, to attend to their child’s education, or to address other urgent
matters. Employees with at least 3 months of service are entitled to have the
first 3 of these personal leave days paid at their regular rate for their
normal hours of work. An employee can be asked to provide documentation to support
their time off. This may be a good fit for employees WHO ARE home with children
because of school cancellations or for the first few days of leave due to COVID-19
illness or quarantine.

Federally regulated employees’ minimum rights include up to 17
weeks of unpaid leave for personal illness. Federally regulated employees who
need a medical leave of absence should give written notice to their employer as
soon as possible and should tell their employer how long they expect to be off,
if they can do so. Any pension, health or disability benefits should continue
while the employee is off work, but if an employee contributed to these benefits
on their paycheque before their leave, they still need to do so. Federally
regulated employees may have additional rights if their illness is
work-related. This leave may be appropriate for employees who contract COVID-19.

Previously, employees could be asked to provide a medical
certificate from a health care practitioner certifying they are incapable of
work if they needed more than 3 days off. Yesterday’s amendments eliminate that
obligation.

What if I’m self-isolating?

Yesterday’s amendments to the Canada Labour Code
gives eligible employees who are quarantined access to 16 weeks of medical
leave, too. In other words, you don’t have to actually be sick to get medical
leave. Quarantined people (such as those exposed to COVID-19 or who recently
travelled) who are not sick can access unpaid leave.

What if I’m healthy but I’m home with my children because
of COVID-19 school closures?

Other federally regulated employees affected by COVID-19 can
also access an unpaid leave of up to 6 weeks. To access this leave, the
employee needs to give notice to their employer of the reason for their leave
and how long they expect it to last. They may be asked to provide a written
declaration in support of their leave. Unlike the law for provincially
regulated employees, the federal rules don’t specifically mention childcare;
However, employees whom with childcare needs arising from daycare and school
closures may be able to access this leave. We’ll be monitoring how this
provision is understood by lawyers, judges and politicians. As with all leaves,
if you’re unsure if you’re covered you should seek legal advice.

What are my rights if a family member gets sick with
COVID-19?

While we hope that none of our readers experience serious
family illness due to the coronavirus, federally regulated employees may be
able to access additional leave in those circumstances.

Federally regulated employees who need to care for a close
family member who has a serious medical condition with a significant risk of
death can take up to 28 weeks of unpaid leave to care for that person.

Federally regulated employees who need to provide care to a
critically ill member of their immediate family can access an unpaid leave of
absence of up to 37 weeks if the sick person is their child or 17 weeks if the
sick person is an adult.

Normally, they could be asked to provide a medical
certificate confirming that their family member is critically ill or have a
serious medical condition in order to take these leaves. Yesterday’s amendments
eliminate this requirement.

What if I don’t fall into one of these categories?

In addition to the minimum standards set by the Canada
Labour Code, federally regulated employees may have additional rights under
their employment contract, collective agreement or employer’s policies. If you’re
unsure what rights you have, you should contact your union or an employment lawyer.

Federally regulated employees with disability-related needs
that affect their ability to work during the COVID-19 pandemic or who have new
childcare (or elder care) obligations because of the coronavirus may also have
rights under the Canadian Human Rights Act. The right not to be
discriminated on the basis of disability or parental status under the Canada Human
Rights Act has been interpreted to require employers to reasonably
accommodate disability-related or parenting needs up to the point of undue
hardship. You can find out more about parental status accommodation here
or here.
Every disability- or parental-status accommodation case is different, so if you
have concerns you should contact your union or an employment lawyer for advice
specific to your situation.

What about government employees?

Federally regulated employees of the Government of Canada
may be subject to additional directives not covered in this blog post. They can
find more information here.

What if my employer closes or lays people off because of
COVID-19?

No law prevents an employer from terminating an employee’s employment or laying them off for business reasons. You may be affected by layoffs even if you are on a job-protected leave. You may also be terminated for cause if you’ve committed misconduct. These rights prevent you from being discriminated against or losing your job because you took a protected-leave.

Federally regulated employees also have different minimum rights
upon termination than provincially regulated employees, though that may be a
topic for a future blog post – and these rights may be affected by collective
agreements, employment contracts, or the common law. Here’s a primer
on severance packages that you can check out.

DISCLAIMER: This blog is for educational and
informational purposes only. Results of cases described in these posts may not
be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not
guaranteed, and laws may change from time to time. If you would like legal
advice or have questions about your particular workplace problems, please
contact a lawyer. Click
Here to
contact Hamilton labour, employment and human
rights lawyers Sarah
Molyneaux or Roberto
Henriquez now. Contacting
Molyneaux Law or using this website does not create a lawyer-client
relationship. Your use of this website is entirely at your own risk.

]]>Can I refuse to work because of COVID19? Coronavirus and work refusals in Ontariohttps://www.molylaw.com/2020/03/coronavirus-covid19-work-refusals-ontario/
Thu, 19 Mar 2020 20:57:03 +0000https://www.molylaw.com/?p=1936Can you refuse to go to work during the coronavirus pandemic? Many Ontario workers are worried that their work or their workday commutes will expose them to coronavirus. Some of these worries are well-placed, while for others it’s (understandable) anxiety more than true risk of exposure to COVID19. NOTE: This post is general information, not […]

]]>Can you refuse to go to work during the coronavirus pandemic? Many Ontario workers are worried that their work or their workday commutes will expose them to coronavirus. Some of these worries are well-placed, while for others it’s (understandable) anxiety more than true risk of exposure to COVID19.

NOTE:This
post is general information, not legal advice. Employees considering a work
refusal or who have faced negative consequences because they refused work due
to COVID19 should contact an employment lawyer or their union as soon as
possible. Work refusal is complicated and the legal issues raised by COVID19 in
the workplace are new and unusual.

Employees
or employers with concerns about staying healthy or keeping their employees and
customers safe should seek information from doctors, nurses and scientists, not
lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public
Health Ontario.

The Occupational Health and Safety Act gives workers the
right to refuse unsafe work. In fact, it gives workers an obligation to
report equipment or working conditions that are likely to place them or their
co-workers in danger. We all have a duty to keep the workplace as safe as
possible.

The Occupational Health and Safety Act also gives
workers theright to know about any potential hazards in their
workplace and the right to participate in identifying health and safety
concerns at their workplace.

CAN ALL WORKERS REFUSE UNSAFE WORK?

However, there are exceptions for workers like police
officers, firefighters, corrections officers, workers in juvenile detention
facilities, hospital workers, long-term care home, psychiatric institutions,
mental health or rehabilitation facilities, residential group homes or other
facilities for persons with behavioural or emotional problems or a physical,
mental or developmental disability, an ambulance service or first aid clinic or
station, a government or licensed lab, or in the service of some of these
operations (i.e. a laundry service for a hospital). These workers do not have
the right to refuse or stop work if the danger they’re concerned about is a
normal condition of their employment.

For example, it is dangerous but a normal condition of a
firefighter’s employment that they go into burning buildings. Most other
workers would be able to refuse a direction to go into a burning building, but
firefighters generally cannot. These workers are also not allowed to refuse
work if that refusal directly endangers the life, health or safety of another
person. For example, if the firefighter refuses to go into a burning building
to attempt to save a child. That doesn’t mean firefighters can never refuse
unsafe work. For example, if their normal personal protective equipment (PPE)
isn’t available or is damaged, a firefighter might have grounds to refuse work.
This would depend very much on the circumstances, though.

There are some other exceptions under various Ontario laws.
For example, workers in schools or daycare facilities can’t stop working if it
means leaving children unsupervised and unsafe. In addition to these rules,
some workers have professional obligations because of their professions. People
like nurses, doctors, and lawyers may have professional duties that
occasionally require them to do work that other people would legitimately be
able to refuse. Their professional colleges can provide them with specific
information about these ethical considerations.

HOW DOES A WORKER REFUSE UNSAFE WORK BECAUSE OF CORONAVIRUS?

If a worker believes that their work equipment, physical
working conditions, workplace violence or anything that they need to use or
operate at work is likely to endanger themselves or another worker, they must
promptly report their refusal to work to their employer or supervisor.

The basic steps are:

Promptly report the circumstances of the refusal to employer or supervisor.

Employer or supervisor “forthwith” investigates the report. They should do so in the presence of the worker and, if there is one, a member of the workers’ health and safety committee or a health and safety representative or another worker who is selected by the worker’s union or workers in the workplace because of their knowledge, experience and training.

After the investigation, the employer can advise the worker that they believe that the work is safe or take steps to make the work safe.

If the worker has reasonable grounds to believe that the work is unsafe, they can still refuse to work. The employer or the worker must then notify the Ministry of Labour.

A Ministry of Labour Inspector will investigate the work refusal in consultation with the worker and the employer or their representative.

The Ministry of Labour Inspector will decide whether the work is likely to endanger the worker or some one else and give a decision in writing to the worker and the employer as soon as practical.

If the Ministry of Labour Inspector decides that the work is not likely to endanger the worker or any one else, the worker is expected to do the work.

If the Ministry of Labour Inspector decides that the work is unsafe, the Inspector will direct the Employer to take steps to make the work safe. Once the Employer has taken these steps, the worker is expected to do the work.

If you have a union, your union steward, union
representative or union business agent should be able to help you navigate this
process.

WHAT HAPPENS DURING THE INVESTIGATION?

During the employer’s investigation and any Ministry of
Labour inspection, the worker is expected to remain at work during their
regular working hours. They need to be available to the investigators, whether
it’s the employer’s investigator or the Ministry’s inspector. They should be at
a safe place near their work station. However, the employer can assign the
worker reasonable alternative work during their regular work hours or give the
employee other directions. The employee should continue to be paid during the
employer’s investigation, provided they come to work as instructed.

While the Ministry of Labour’s Inspector is investigating,
no worker should do the potentially dangerous work unless they have been
advised of the refusal and their co-worker’s reasons for refusing the work.
This information must be shared in the presence of a workers’ health and safety
representative selected by the workers in the workplace or by their union.

Workplaces with Joint Health and Safety Committees are
subject to slightly different procedures. They can apply to the Ontario Labour
Relations Board if a joint stoppage of work won’t sufficiently protect workers.

WHAT IS A HEALTH AND SAFETY REPRESENTATIVE OR A JOINT
HEALTH AND SAFETY COMMITTEE? DO WE HAVE ONE?

All provincially regulated Ontario workplaces with more than
5 employees should have at least one non-managerial employee health and safety
representative. This representative must be selected by the workers.

Workplaces with more than 20 employees must have a Joint
Health and Safety Committee. So too must smaller workplaces where employees
deal with certain regulated or designated substances, including biological,
chemical or physical agents which may be dangerous. Some short-term
construction projects do not need a Joint Health and Safety Committee.

WHAT IF THE INSPECTOR DOES NOT AGREE WITH THE WORKER?

Generally, the inspector’s decision is the final word. However, it’s illegal for your employer to retaliate against you for raising genuine concerns about workplace safety. You don’t have to be right to be protected from retaliation, but you do have to act reasonably and in good faith. Employees who abuse the work refusal process can be disciplined. Likewise, employees who refuse to work after an investigation because of a subjective but unfounded fear can be disciplined.

Illegal reprisal can include disciplining, firing or
harassing an employee because they raised legitimate concerns about
occupational health and safety. Employees who experience retaliation can apply
to the Ontario Labour Relations Board for an order that they get their job
back, be compensated for lost wages, have discipline deleted, or be paid
damages (though these are normally modest).

WHAT DOES THIS MEAN FOR COVID19?

The current situation is very unusual. Lawyers, unions and
Ministry Inspectors normally look at past cases (aka precedents) to decide
whether something is unsafe or illegal. This is a challenge when we are dealing
with something new, like the coronavirus.

At the same time, workplaces deal regularly with the flu and other contagious diseases. The Ministry of Labour released a guide to health and safety during flu season back in 2010 that may still be helpful today. It reminds employers that they have to take “every reasonable precaution” to protect workers’ health and safety. What is reasonable will depend on your job, your workplace, your personal circumstances (for example, are you immunocompromised?), your community and current medical or public health information.

WHAT IF I’M IMMUNOCOMPROMISED?

Workers who are immunocompromised may have additional protections under the Human Rights Code, which prohibits discrimination on the basis of disability. Disability discrimination includes a refusal to provide reasonable accommodation to the point of undue hardship. It can also include a refusal to reasonably consider requests for accommodation. While recent measures mean that employees may not need a sick note to take sick leave or stay home with sick family members at this time, they may need to provide support for requests for disability accommodation. Employees also need to bear in mind that the Human Rights Code does not guarantee you the perfect disability accommodation or one of your choosing, only one that is reasonable. Both employees and employers need to remember that what is reasonable accommodation or undue hardship in one case may not be in another.

This can be complicated, and we’re all dealing with new
issues right now. If you are unsure about your rights or obligations under the Human
Rights Code or Occupational Health and Safety Act, you should
contact an employment lawyer or your union as soon as possible.

WHAT IF I HAVE CORONAVIRUS OR HAVE BEEN ORDERED TO SELF-ISOLATE?

As a result of the declaration of a state of emergency in Ontario and new legislative amendments, employees have the right to job protection if they have been ordered by public health to stay home. Please read our FAQ post (linked below) to find out more.

If your employer is pushing back on your self-isolation, contact your union or an employment lawyer as soon as possible.

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>Can I be fired because of coronavirus? Frequently asked COVID-19 employment law questionshttps://www.molylaw.com/2020/03/can-i-be-fired-because-of-coronavirus-frequently-asked-covid-19-employment-law-questions/
Tue, 17 Mar 2020 02:08:00 +0000https://www.molylaw.com/?p=1923Can I be fired because of coronavirus? Parents looking ahead to 3 weeks of public-school or daycare cancellations may be wondering about their options. Employees who test positive for the coronavirus or have been directed to self-isolate because of their symptoms or travel may be facing 2 weeks or more off work. Even healthy folks […]

]]>Can I be fired because of coronavirus? Parents looking ahead
to 3 weeks of public-school or daycare cancellations may be wondering about
their options. Employees who test positive for the coronavirus or have been
directed to self-isolate because of their symptoms or travel may be facing 2
weeks or more off work. Even healthy folks without children have questions as
more businesses direct employees to work from home or take time off to avoid
COVID-19.

LAST UPDATED 26 MARCH 2020.Laws are changing rapidly in response to COVID-19. Please be sure to get the most current available information from a reliable source and seek legal advice if you are unsure of your rights.

Here are the answers to some Frequently Asked Questions
about employee rights and employer obligations during coronavirus.

LEGALEASE

Please note, this is general information and not legal
advice.

While we encourage you to read this post and the links we’ve
included to trusted resources, each workplace and each worker is different. At
the same time, governments have been announcing new measures regularly so some
of this information may change. If you have specific concerns about your
workplace, please contact an employment lawyer or your union as soon as
possible. If you work outside of Ontario, please consult resources specific to
your province or territory.

Of course, employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

UPDATE: What does a declared emergency mean for employees?

On March 17, 2020, Premier Ford declared an emergency under the Emergency Management and Civil Protection Act. This entitles employees who cannot perform their duties because of orders under the Emergency Management and Civil Protection Act to an unpaid leave of absence. This can include things like orders that certain businesses, offices, schools or other facilities close or that travel be restricted. During a declared emergency, employees subject to orders under the Health Protection and Promotion Act are also entitled to an unpaid leave of absence if that order and the emergency means they can’t perform their duties. For example, if you’re ordered to self-isolate and can’t work. This job protection extends to employees who need to provide care to their close relatives or dependents because of the declared emergency. For example, if your child’s school closes because of the emergency and you need to stay home with them.

At this time, the government is ordering that recreation centres, public libraries, private schools, day cares, bars, restaurants, theatres, concert venues and cinemas close immediately and stay closed until March 31. Al public gatherings of 50 people or more are prohibited at this time.

Orders like this can last a maximum of 14 days. It can then be extended an additional 14 days. After that time, an emergency can be extended only by a vote of the legislature. You can find out more about the declaration here here.

As part of these emergency measures, the Ontario government amended the Employment Standards Act to add new protections for employees who are sick with COVID-19, ordered to self-isolate, or have new childcare/eldercare obligations because of the declared emergency. We’ve edited this post to reflect these changes. We’ve also added a more detailed post about those changes here.

How many sick days do employees get?

Provincially regulated employees in Ontario are entitled to a minimum of 3 unpaid sick days. To be eligible employees need to have worked for their employer for at least 2 weeks. Normally, your employer can demand proof that you needed those days off, such as a doctor’s note. This obligation has been suspended for COVID-19 sick days. You can find out more about sick leave minimums here.

Employees may have additional sick day rights under their
employment contract, collective agreement or workplace policies. Some employers
are changing their rules (at least temporarily) to respond to concerns about
the spread of coronavirus. If you are unsure whether you have additional sick
days, consult your contract, your employee manual, recent notices from your
employer and consider calling an employment lawyer or your union.

Update: Emergency amendments to the Employment Standards Act permit employees to take COVID-19 related leaves without supplying a doctor’s note. Instead, employers can ask for proof that is reasonable in the circumstances. What this will look like will vary, so employees should keep whatever records are available to them. These emergency amendments also extend job-protection for employees sick with COVID-19 retroactively to 25 January 2020. See our more detailed post on these new rules on covid 19 leaves here.

Can I take sick days if my child is sick?

Yes. Provincially regulated employees in Ontario are entitled to a minimum of 3 unpaid family responsibility leave days to provide care for a sick family member or provide care to family members relating to other “urgent matters”. This includes care for:

Your child, including your step-child, foster
child or spouse’s child

Your spouse

Your parent, step-parent, foster parent or your
parents-in-law

Your grandparent, step-grandparent or spouse’s
grandparent

Your grandchild, step-grandchild or spouse’s
grand child

Your child’s spouse

Your sibling

Any other relative who depends on you for care
and assistance

Your employer can demand reasonable proof that you needed this time off. As with sick days, in normal circumstances this might include asking for a doctor’s note.

Update: Recent amendments to the Employment Standards Act expressly protect parents who need to miss work because of the COVID-19 school and daycare closures. Employers cannot demand a doctor’s note when granting these leaves, but they can demand reasonable proof. See our more detailed post on these new rules on covid 19 leaves here.

What if I get COVID-19? What if some one in my family has COVID-19?

For many people, COVID-19 is not life threatening and does not involve serious complications. However, if you or your family member have COVID-19 and experience serious or life-threatening symptoms or complications, the Employment Standards Act may offer you additional basic protections. Workers with serious illness or who are caring for children (or other family members) with serious illness may be eligible for one or more of the following job-protected unpaid leaves from work:

In the very unlikely event of a loss of life in your family due to COVID-19, these leaves end at the end of the relevant week. You would be entitled to 2 days of bereavement leave and, in the event of a death of a child, employees with more than 6 months of service would be entitled to child death leave.

Can an employee take sick days if their child’s school or day care is cancelled due to coronavirus?

Yes, sort of. An employee would likely be entitled to a minimum of 3 unpaid family responsibility days.

In addition the minimum standards, employment contracts,
collective agreements or workplace policies may offer additional days for these
types of emergencies.

If your contracts or policies do not address days off, the Ontario Human Rights Code still requires employers to reasonably accommodate true childcare needs to the point of undue hardship. What is reasonable accommodation to the point of undue hardship will depend on employee needs and the workplace. For example, it may not be a reasonable accommodation to let an employee take 3 weeks off with pay because their 16 year old is off school, but it may be a reasonable accommodation to let an employee work from home part time for 3 weeks while their 5 year old is off school. Something may be an undue hardship for a small business which is not an undue hardship for a large corporation. The law protects an employees’ legal obligations as parents, not their preferences, and requires employees to do a lot of the heavy lifting to seek out alternatives before an employer is obliged to make changes at work.

You can check out our past blog posts on parental status
accommodation here and here.

Update: Recent amendments expressly protect parents who need to miss work because of coronavirus-related school or daycare closures, or to care for family members who may be sick with COVID-19. See our more detailed post on these new rules on covid 19 leaves here.

Can I be fired for taking time off because my child’s school or day care is cancelled due to corona virus?

The duty to reasonably accommodate parents’ legal
obligations to care for their children to the point of undue hardship means
that most people can’t be fired for taking some time off to deal with an unexpected
loss of childcare – especially for young children. But, employees will need to
communicate with their employers about their needs, cooperate in the
accommodation process, and be willing to accept compromises.

However, the Human Rights Code does not protect
employees from legitimate layoffs. If your employer is facing losses because of
coronavirus (or by coincidence) that lead to layoffs, parents can be affected
just like any other worker.

These situations can be complicated, so employees should
consider consulting a human rights lawyer or their union if they encounter
challenges or are unsure of their rights.

Update: Recent amendments expressly protect parents who need to miss work because of coronavirus-related school or daycare closures, or to care for family members who may be sick with COVID-19. See our more detailed post on these new rules on covid 19 leaves here.

Can my employer force me to stay home or lay me off during coronavirus?

Yes. In general, employers can direct employees’ work. This includes telling employees where and when to work. There may be consequences though. If your employer is sending you home without pay or laying you off, or if your working from home means a big pay cut for you, this may amount to dismissal in some cases. But, this will likely depend very much on the circumstances including how long you’re asked to stay at home. As with other reactions to coronavirus, we urge both employers and employees to refrain from making rash decisions. We encourage people navigating unpaid time off or significant pay cuts to consider getting legal advice tailored to their specific circumstances

We note that in some cases, employers may not have a choice.
The duty to keep workplaces safe for employees may require asking employees
with symptoms of COVID-19 to stay home at this time.

For employers who serve vulnerable populations (such as
hospitals, nursing homes, long-term care homes, etc) there may be added
responsibilities to protect the safety of patients or clients. If you work in
these environments, you may also have a professional or public health
obligation to personally take steps to protect the health of your patients or
clients. You may wish to consult your regulatory college, your union if you
have one, or a professional regulation lawyer.

Can the government force employees to stay home if they have COVID-19?

Yes. The government has the power to order any one with a communicable disease to take steps to protect public health. This can include ordering some one with COVID-19 to stay home or take other steps. There are appeal mechanisms if someone is ordered to self-isolate or be in quarantine. However, this is outside of our team’s expertise. If this happens to you, you may want to speak to some one experienced in health law.

Update: A recent order that all non-essential businesses close or work remotely means that many workers have effectively been ordered to stay home from work.

If I have to stay home due to Coronavirus, does my employer have to pay me?

Not necessarily. Again, the Employment Standards Act does not mandate paid sick leave. It does not look like the government is including paid sick leave among its emergency measures at this time. However, your employment contract, collective agreement or workplace policies may entitle you to paid sick days or other paid days off that you can apply to a coronavirus-related absence. If you are unsure about your rights after reviewing your contract, collective agreement or workplace policies, consider calling your union or an employment lawyer for advice.

Can I apply for EI (Employment Insurance)?

Yes. Normally, there’s a waiting period to apply for
Employment Insurance (EI), even for sickness benefits. The Canadian government
is eliminating the waiting period and extending coverage to people in
quarantine. Provided you are otherwise eligible for EI, you can apply for up to
15 weeks of sick benefits. You can find out more here.

People who are not sick with symptoms of COVID-19 or in
self-isolation but are facing job loss or temporary layoffs may be eligible for
regular EI benefits. You can find out more here.

If you become seriously sick and have coverage through work, you may also be eligible for short- or long-term disability coverage. Consult your employment contract or collective agreement and talk to your union, human resources person, or employment lawyer if you have questions about your eligibility.

Update: A new benefit announced by the Federal Government offers faster access to funds for workers, including people who might not otherwise be eligible for EI. This is called the Canada Emergency Response Benefit or CERB. You can find out more here. We’ll do a more detailed post once we have a bit more information about this benefit.

You keep saying “provincially regulated employees”, does that include me?

Most employees in Ontario are provincially regulated. Some
employees are federally regulated because of the industry they work in. Common
examples include bank employees, airline employees, inter-provincial
transportation workers, but these are not exhaustive. If you’re unsure if
you’re federally regulated, your union, your human resources person or an
employment lawyer should be able to help you figure it out.

Federally regulated employees are entitled to a minimum of 5 sick days per year. Federally regulated employees with more than 3 months of service are entitled to 3 paid sick days. As with provincially regulated employees, federally regulated employees may have additional rights or benefits as a result of their employment contract, collective agreement or workplace policies. If you’re unsure what your rights are, please contact an employment lawyer or your union.

Wait, so can I be fired or not?

These leaves are what lawyers call “job protected”. But, that doesn’t guarantee you’ll keep your job. Firstly, employers sometimes break the law deliberately or due to ignorance. Secondly, employees can still be dismissed for serious misconduct or as part of unrelated layoffs. It can be complicated. If you’re laid off permanently or temporarily or fired during the COVID-19 pandemic, you should get legal advice or the advice of your union as soon as possible.

Resources

DISCLAIMER: This blog is for educational and informational purposes only may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.

]]>New Sick Day Rules Draw Criticism as Coronavirus Fears Growhttps://www.molylaw.com/2020/02/ontario-sick-day-rules-2020/
Fri, 07 Feb 2020 23:28:32 +0000https://www.molylaw.com/?p=1768The Ontario Employment Standards Act was changed again in 2019. After just a year, our last post on sick days was rendered out-dated by cuts to sick day entitlements for most Ontario workers. In place of 10 days of personal emergency leave (2 of which were paid), workers are now entitled to just 3 unpaid […]

]]>The Ontario Employment Standards Act was changed
again in 2019. After just a year, our last post on sick days was rendered
out-dated by cuts to sick day entitlements for most Ontario workers. In place
of 10 days of personal emergency leave (2 of which were paid), workers are now
entitled to just 3 unpaid sick days and 3 unpaid “family responsibility” days.

This week, Molyneaux Law’s Sarah Molyneaux spoke to CBC
Radio morning hosts across the province about what these changes mean as
Ontarians gear up for flu season and worry about the potential impact of the
coronavirus.

Sick employees or employees with sick children should make
note of the following changes to their basic rights:

Instead of 10 days of personal emergency leave,
employees can take 3 days for personal illness and injury (called “sick leave”)
and 3 additional days for illness, injury, medical emergency or urgent matters
relating to their spouse, parent, child, grandparent, grandchild, sibling, or
other dependent (called “family responsibility leave”)

The right to paid days off is eliminated

Employers may ask for a doctor’s note or other
proof reasonable in the circumstances after a sick day

One thing that hasn’t changed since our last blog post on
this topic is that employees may not be limited by the Employment Standards
Act rules. The Act establishes the minimum standards only. Think about how
this law sets a minimum wage, but you may have an agreement to be paid more
than that. Similarly, you may be entitled to more sick days under your
employment contract, your collective agreement or your employer’s policies than
the minimum standard requires.

At the same time, employees dealing with serious Illness or
injury in their families may have additional entitlements under the Employment
Standards Act. Things like family medical leave, family caregiver leave and
critical illness offer 8 to 37 weeks off to workers in these extreme
circumstances, depending on the leave and circumstances.

Employees who need more time off because of a
disability-related need or to provide care for a parent or child may also have
protection under the Human Rights Code if enforcement of the 3 day maximum
violates their employer’s duty to reasonably accommodate to the point of undue
hardship.

Employees who aren’t sure what their rights are or think their
employer is illegally refusing them time off should call an employment lawyer
to get advice.

Why the change to sick day rights in Ontario?

The government defended this reduction in sick day rights by
pointing to costs to employers. Others have argued that employees abuse sick
days, taking a sick day when they’re not really sick.

As Sarah told Wei Chen on Ontario
Morning “I’m sure that some people
do [abuse sick days]. Particularly with an entitlement of just 3 days, I’m
skeptical that that’s a serious risk. The average person will be sick at least
three days in a calendar year. […] The benefits that we can gain from having
genuinely sick people stay home or people with genuinely sick parents or
children stay home to care for those people certainly outweigh the risk of a
small number of people abusing the right to take just 3 unpaid days off work.”

Sarah’s not the only critic. A group of health care workers
and workers’ rights activists (Decent Work & Health Network) recently sent
an Open Letter calling
on the Ontario government to reinstate the right to take 10 days of Personal
Emergency Leave. They even asked for an increase to 7 days of paid time off and
an end to the right to demand unnecessary doctor’s notes. In support of their
request, they explained that the best medical advice is often to stay home and
rest- and that this reduces the chance of spreading disease.

DISCLAIMER: This blog is for educational and
informational purposes only may not be typical and are not guaranteed. The
accuracy of Moly Law Blog posts is not guaranteed, and laws may change from
time to time. If you would like legal advice or have questions about your
particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human
rights lawyers Sarah
Molyneaux or Roberto
Henriquez now. Contacting
Molyneaux Law or using this website does not create a lawyer-client
relationship. Your use of this website is entirely at your own risk.